In the previous chapter, I argued that soldiers can be held individually responsible for violating international humanitarian law, but I believe that leaders should be the primary targets of international prosecution for war crimes. While soldiers can be held individually responsible for violating international humanitarian law, normally it should be difficult to do so unless there was a joint criminal enterprise. Even in such cases, the mens rea component of criminal liability will be difficult to prove. It is the leaders rather than the normal soldiers who more often display the kind of mens rea that is looked for in criminal cases. When we come to consider the criminal responsibility of the leaders, there are two conceptual problems nonetheless. In this chapter, I argue that military (and political) leaders should normally be those who are prosecuted for war crimes. In so arguing, I will offer solutions to two main conceptual problems with such prosecutions.

The first conceptual problem concerns how difficult it often is to establish the actus reus component of criminal liability, for it is normal soldiers rather than the commanders who actually do the killing of civilians or torturing of prisoners, for instance. The two strategies normally employed for solving the actus reus problem correspond to the two main provisions on criminal liability of the ICTY Statute.